Lawyers have learned that the way to
frame a Supreme Court argument intended to persuade Justice Anthony
M. Kennedy is to tell love storiesthe kind of stories that begin
with powerful barriers that threaten to thwart the lovers’ desires
and dreams, but always end with “living happily ever after.” In
Justice Kennedy’s world, loversespecially gay and lesbian
loversare just a Supreme Court decision away from a perfect life.

In his June 26th decision to
strike down any barriers that would keep same sex couples from
“marrying”, Justice Kennedy wrote that there is “no legitimate
purpose” for federal laws keeping these couples from marrying.
Going even further, Justice Kennedy stigmatizes anyone who might
disagree with such marriages by writing that the federal statute that
had been enacted to bar the federal government from recognizing same
sex marriages was intended to “disparage and to injure.”

Putting himself in the role of
protecting the same sex protagonists from the barriers imposed by
those he views as bigots who want to deny happiness to those who only
want to love and be loved, Justice Kennedy appears to view himself as
the conquering hero of his own life story. He has said so himself.
In an article for the New Republic, “Supreme
Arrogance: The Arrogance of Anthony Kennedy” (June 16, 2007),
Jeffrey Rosen recalls that before handing down his decision in
Planned Parenthood v. Casey, the ruling that affirmed and
strengthened the right to an abortion, Kennedy told a reporter,
“Sometimes you don’t know if you’re Caesar, about to cross the
Rubicon, or Captain Queeg, cutting your own tow line.” He then
channeled Hamlet, excusing himself by saying that he needed to
“brood.”

A
Dewy-Eyed, Utopian Moralist

Justice Kennedy has often described
himself as having been shaped by novels and playsmany of them love
stories. Rosen’s New Republic article suggests that
Kennedy, “apparently uncomfortable with real conflicts among real
people,” took refuge from an early age in the morality tales he
found in fiction. In an interview with a reporter, Kennedy once
said: “I think fiction is very important because it gets us into
the mind of a person. Hamlet is a tremendous piece of literature. You
know Hamlet better than you know most real people. Do you know the
reason? Because you know what he's thinking. And this teaches you
that every human has an integrity and an autonomy and a spirituality
of his own, of her own, and great literature can teach you that.”

Born in 1936, and raised in Sacramento,
California during the postwar economic boom. Justice Anthony
Kennedy enjoyed a golden childhood in the golden state. According to
Rosen, Kennedy once told an audience at the Academy of Achievement,
“It was a wonderful town and a wonderful time.” Recalling the
movie, It’s a Wonderful Life with Jimmy Stewart, Kennedy
implies that such a world can be recapturedif only the right laws
are in place. Rosen's judgment is perhaps surprising, but makes sense
of Kennedy's body of judicial judgments: “Kennedy
is not a systematic thinker but a utopian moralist; and, like many
sweeping visionaries, he is unwilling to accept the radical
implications of his own abstractions.”

When writing his decisions, the Roman
Catholic Kennedy approaches them more as morality plays, with
characters who are either good or evil. The evil ones are those who
impose their morality on others they wish to control. In 1996, in
Romer v. Evans, Kennedy wrote the majority opinion striking
down a Colorado constitutional amendmentpassed by the people in
that statethat would have outlawed giving gay, lesbian, bisexual
and transgendered individuals status as a protected class. Kennedy
wrote that the law “identifies persons by a single trait and then
denies them protection across the board. The resulting
disqualification of a class of persons from the right to seek
specific protection from the law is unprecedented in our
jurisprudence.” For Kennedy, Coloradans who supported the
amendment depriving gay men and lesbian women of special protections
were motivated by “animosity” to the GLBT community.

A few years
later, an even more passionate plea for the rights of same sex
couples, was contained in Justice Kennedy’s decision in 2003 in
Lawrence v Texasa case challenging the constitutionality
of anti-sodomy laws. Continuing his commitment to finding love in all
the wrong places, Justice Kennedy’s majority opinion in Lawrence
held that “when sexuality finds overt expression in intimate
conduct with another person, the conduct can be but one element in a
personal bond that is more enduring.” What Justice Kennedy did not
know then was that the love-story narrative surrounding the
plaintiffs in Lawrence was always a lie. Flagrant Conduct:
The Story of Lawrence v. Texas, a book published in March by Dale
Carpenter, a professor at the University of Minnesota Law School,
revealed that Lawrence was never a case about what Justice
Kennedy would have defined as a loving relationship.

Catholic World Report readers
may recall my story,
“House of Lies” (March 26, 2013), which describes the sordid
story of the plaintiffs, John Lawrence and Tyron Garner. Both men had
been charged with engaging in deviant sexual activity. Realizing how
difficult it would be to find a case to challenge the Texas sodomy
statute, national gay-rights advocacy groups effectively repackaged
the story of Lawrence and Garner’s drunken one-night-stand into a
love storywith heroic lovers struggling to solidify their bond in
a society that despised them.

It was a brilliant strategy, specially
designed for Justice Kennedy, the lover of love stories. As Dahlia
Lithwick wrote in a New Yorker review of Carpenter’s book,
“Nobody had to know that the gay-rights case of the century was
actually about three or four men getting drunk in front of a
television in a Harris County apartment decorated with bad James Dean
erotica.” And until Carpenter’s book was released in 2012, no one
ever knewincluding Justice Kennedy.

In his June 26th ruling on, Justice
Kennedy turned his protective powers to the children of same sex
couples. Implying that these children are all cowering in the
shadows of a society that wants to deny them the “integrity and
closeness” all families deserve, Justice Kennedy wrote of the
“humiliation” such families suffer because of the laws keeping
their parents from marrying. But, life is not fiction. For example,
Robert Oscar Lopez, a man who was raised from the age of three by a
lesbian couple, rejects the claim that the problems that the
children of same sex couples face have their origins in a society
that rejects them. Rather, he
wrote in a Public Discourse essay, “Growing
Up With Two Moms: The Untold Children’s View” (August
6, 2012), that
“growing up with gay parents was very difficultand not because
of prejudice from neighbors … I grew up in a house so
unusual that I was destined to exist as a social outcast.” None of
this, Lopez explained, has to do with discrimination because same sex
couples were unable to legally marry.

Additional research by Mark Regnerus,
Professor of Sociology at the University of Texas, reveals that
children raised in households where at least one parent had had a
same sex relationship reported higher rates of unhappiness and
relationship instability. Research by sociologists Judith Stacey and
Timothy Bilblarz found that children raised in same sex households
were significantly more “sexually adventurous” than children
raised in heterosexual households. None of these studies conclude
that it is societal reactions that caused the challenges that these
children face. It is not likely that a marriage license for their
two moms or dads will make a difference in preventing their
unhappiness or their own willingness to engage in what Stacey and
Bilblarz celebrate as “sexually adventurous behavior.”

Catholic Teaching and
Justice Kennedy’s Decisions

Earlier this year, the Huffington
Post published a study by William Blake on the impact of the
justices’ religious views on Supreme Court decisions. According to
Blake, Justice Kennedy is “most likely to support the position of
the Catholic Church.” The reason that Blake believes this is
because Justice Kennedy is most likely to use the Catholic concept of
“human dignity” to influence his decisions. Considering Justice
Kennedy’s decision to expand a woman’s right to abortion in
Planned Parenthood v Casey in 1992, most faithful Catholics
might disagree with Blake on his assertions that the Justice is
influenced by Catholic teachings. While Justice Kennedy continues to
claim to be a devout Catholic, as described in a profile in The
New Yorker in 2005, his rulings on abortion, sodomy and same sex
marriage hardly appear to be influenced by Catholic teachings on
morality, the sacredness of marriage, and the life of the unborn.

Of course, it is possible that Justice
Kennedy does not believe that the Catholic concept of “human
dignity” applies to the unborn. Rather, he is concerned about the
dignity of the woman who desires an abortion, or the same sex couple
who desire to be “married.”

Still, faithful Catholics continue to
be discouraged when considering what might have been when looking at
the composition of the court. With a Catholic majority on the court,
they reasonably expected that at least a few of the rulings might
favor the sacredness of life from conception to natural death, or
traditional marriage. Back in 1987, when the Senate Judiciary
Committee began hearings on the nomination of then-Judge Anthony M.
Kennedy to the Supreme Court, there were indeed questions about his
beliefs regarding abortion. Many of the pro-life Senators who were
involved in the confirmation hearings for Justice Kennedy actually
believed he would look favorably on overturning the Court’s
decision in Roe v Wade.

To understand why so many Senators
thought Justice Kennedy might rule to protect the life of the unborn,
it is helpful to read a 1987 article published in the New York
Times entitled “The
Questions Begin: Who is Anthony Kennedy?” (December 15, 1987).
According to the Times article, one of the senators asked
Kennedy during the Senate confirmation hearings about a newspaper
column written by Cal Thomas which reported that Republican Senator
Jesse Helms of North Carolina told him that he and then-Judge Kennedy
met in a private room at the White House on November 12, 1987. “I
think you know where I stand on abortion,” Mr. Helms reportedly
said to Kennedy. According to Senator Helms, Kennedy smiled and
answered, “Indeed I do and I admire it. I am a practicing
Catholic.” Columnist Thomas reported that Mr. Helms interpreted
the response to mean that Kennedy would be opposed to abortion.

Kennedy’s response to the senator who
asked him about his conversation with Senator Helms was to say that
“The conversation that you referred to was wide ranging of a
personal nature in which the Senator asked me about my family and my
character and I told him, as I have told others of you that I admire
anyone with strong moral beliefs.” And then he said: “Now it
would be highly improper for a judge to allow his or her own personal
or religious views to enter into a decision respecting a
constitutional matter.”

It is clear to most faithful Catholics
that Justice Kennedy has indeed kept his word about not allowing
religious views to enter into his decisions about protecting the
unborn, or the sacredness of marriage as the Church teaches. Former
Kennedy law clerk, Michael Dorf, has called his former employer, “the
first gay justice,” because of Kennedy’s zeal to bring what he
perceives as “dignity” to gay and lesbian individuals. Perhaps
it is true that Justice Kennedy takes pride in providing what he sees
as equal rights and human dignity to same sex couples and their
children. But Justice Kennedy should know that overturning centuries
of settled law and cultural norms, as he did in Lawrence, and
creating a pathway to “marriage” for same sex couples, cannot
provide the perfect lives he wants to write for them.

About the Author

Anne Hendershott

Anne Hendershott is professor of sociology and Director of the Veritas Center for Ethics in Public Life at Franciscan University of Steubenville, She is the co-author of Renewal: How a New Generation of Priests and Bishops are Revitalizing the Church (Encounter Books).

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